Discharge Under BNSS: When Can an Accused Be Discharged Before Trial? Sections 250, 262 & 268, Procedure, Grounds and Supreme Court Principles

By Adv. Govind Bali
Fastrack Legal Solutions LLP

A discharge order brings criminal proceedings against an accused to an end before the case proceeds to a full trial on the charge. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicable discharge provision depends upon the type of criminal case and the court trying it.

For a Sessions trial, the principal provision is Section 250 BNSS. For a warrant case before a Magistrate instituted on a police report, discharge is governed by Section 262 BNSS. For a warrant case instituted otherwise than on a police report, the relevant provision is Section 268 BNSS. The BNSS has also introduced express 60-day periods for filing discharge applications in Sessions cases and police-report warrant cases.

This is an important procedural change from the Code of Criminal Procedure, 1973 and should be considered as soon as the prosecution papers are supplied or the case is committed.

What Does “Discharge” Mean in a Criminal Case?

Discharge means that the criminal court examines the prosecution material at the pre-trial stage and concludes that the legal threshold for proceeding against the accused has not been met.

It is fundamentally different from acquittal. An acquittal ordinarily follows a trial or an evidentiary stage at which the prosecution case has been tested according to the applicable procedure. Discharge occurs earlier because the court determines that the accused should not be required to face the trial contemplated by the proposed charge.

The Supreme Court has repeatedly explained that the court deciding discharge is not a mere conduit for the prosecution. It must exercise judicial judgment, although it must not convert the discharge hearing into a full trial.

Which BNSS Section Governs Discharge?

The first question in any discharge application should be: What type of case is this?

Nature of proceeding	BNSS provision	Basic test
Trial before Court of Session	Section 250	Whether there is sufficient ground for proceeding
Warrant case before Magistrate instituted on police report	Section 262	Whether the charge is groundless
Warrant case instituted otherwise than on police report	Section 268	Whether the prosecution evidence makes out a case which, if unrebutted, would warrant conviction; earlier discharge is also possible if the charge is groundless

The official statutory text is available through the India Code BNSS repository.

Section 250 BNSS: Discharge in a Sessions Case

Section 250 applies to a case committed for trial before the Court of Session.

A significant procedural requirement under the BNSS is that the accused may prefer an application for discharge within 60 days from the date of commitment of the case under Section 232.

The Sessions Judge then considers the record of the case, the documents submitted with it, submissions of the accused and submissions of the prosecution. If the Judge considers that there is not sufficient ground for proceeding against the accused, the Judge must discharge the accused and record reasons.

The substantive test is broadly familiar from the earlier Section 227 CrPC jurisprudence, but the express 60-day filing period under BNSS now requires greater procedural discipline.

When Does the 60-Day Period Under Section 250 Begin?

Section 250 links the 60-day period to the date of commitment of the case under Section 232 BNSS.

Defence counsel should therefore identify and preserve:

the Magistrate’s committal order;
the exact date of commitment;
the date the Sessions Court receives the file;
the first appearance before the Sessions Court; and
the proposed filing date of the discharge application.

The statutory trigger should not be casually confused with the date of arrest, filing of the chargesheet or first appearance before the Magistrate.

Section 262 BNSS: Discharge in a Warrant Case Based on a Police Report

Section 262 governs warrant cases before a Magistrate where the prosecution is instituted on a police report.

The accused may prefer the discharge application within 60 days from the date on which copies of documents are supplied under Section 230 BNSS.

The Magistrate considers the police report, documents forwarded with it, such examination of the accused as may be considered necessary, and the submissions of the prosecution and the accused. If the Magistrate considers the charge against the accused to be groundless, the accused must be discharged with reasons recorded.

Why Is Section 230 BNSS Important for a Discharge Application?

Section 262 expressly ties the filing period to the supply of documents under Section 230. Before drafting the discharge application, the defence should therefore verify whether the complete prosecution papers have actually been supplied.

Depending upon the case, these may include:

police report or chargesheet;
FIR;
witness statements;
statements recorded before the Magistrate;
seizure documents;
forensic reports;
medical documents;
electronic evidence;
expert reports; and
other documents relied upon by the prosecution.

A discharge argument prepared without mapping each relied-upon prosecution document against the ingredients of the alleged offence is usually much weaker.

Section 268 BNSS: Discharge in Complaint-Based Warrant Cases

The procedure is materially different where the warrant case is instituted otherwise than on a police report.

After the prosecution evidence contemplated at the pre-charge stage is taken, Section 268 requires discharge if the Magistrate considers that no case has been made out which, if unrebutted, would warrant conviction.

Section 268 also preserves the power to discharge the accused at any previous stage if, for reasons recorded, the Magistrate considers the charge to be groundless.

This distinction is particularly important in complaint-based warrant cases and should not be conflated with the police-report procedure under Section 262.

Discharge vs Framing of Charge

Discharge and framing of charge are opposite outcomes of the same preliminary judicial scrutiny.

For a Sessions case, if the court finds ground for presuming that the accused committed the relevant offence, the process moves toward framing of charge. For police-report warrant cases, framing of charge follows where the statutory threshold to proceed is satisfied.

Discharge asks whether the prosecution crosses the minimum legal threshold for trial.

Framing of charge means that threshold has been crossed; it does not mean guilt has been proved.

What Test Does the Court Apply at the Discharge Stage?

Supreme Court jurisprudence under the corresponding CrPC provisions remains highly relevant because the BNSS carries forward the core discharge framework.

1. The Court Is Not a Mere Post Office

In Union of India v. Prafulla Kumar Samal, the Supreme Court explained that the judge has power to sift and weigh the material for the limited purpose of determining whether a prima facie case exists. The court is not expected simply to reproduce the prosecution’s conclusion and frame charges mechanically.

2. The Court Does Not Conduct a Mini Trial

The discharge court should not determine whether conviction is ultimately certain, which witness will eventually be believed, whether a witness can withstand cross-examination or whether guilt has been proved beyond reasonable doubt. Those are ordinarily trial questions.

The court conducts a limited judicial evaluation, not a final adjudication.

Suspicion vs Grave Suspicion

The distinction between ordinary suspicion and the degree of suspicion sufficient to justify trial has repeatedly appeared in Supreme Court discharge jurisprudence.

In P. Vijayan v. State of Kerala, the Supreme Court reiterated that where two views are possible and the material produces only suspicion rather than the degree of suspicion required to proceed, discharge may be justified. Conversely, where the record gives rise to sufficiently strong or grave suspicion connecting the accused with the offence, the case ordinarily proceeds to charge and trial.

The court is therefore not deciding whether the accused is guilty. It asks whether the prosecution material provides a legally adequate basis to proceed.

What Are Strong Grounds for Discharge?

A discharge application is strongest when it attacks the prosecution case at the level of legal ingredients and the prosecution’s own record.

1. Essential Ingredients of the Offence Are Missing

Every criminal offence contains statutory ingredients. If the prosecution material, taken at its highest, does not establish one or more indispensable ingredients, requiring the accused to face trial may be unjustified.

Depending upon the offence, the missing ingredient may relate to dishonest intention, entrustment, inducement, specific overt act, common intention, conspiracy, possession, knowledge, causation or another statutory requirement.

The most effective discharge applications therefore analyse the case ingredient by ingredient.

2. No Specific Role Is Attributed to the Accused

A chargesheet may contain a long factual narrative but still fail to identify what a particular accused allegedly did.

This is especially important in cases involving numerous family members, company directors, employees, partners, large groups of accused or alleged conspiracies. The defence should isolate the precise allegation against the applicant rather than attack the prosecution case only in general terms.

3. Prosecution Documents Contradict the Prosecution’s Own Case

A discharge argument becomes considerably stronger where the contradiction arises within the prosecution record itself.

Examples may include CCTV contradicting alleged presence, call records inconsistent with the prosecution chronology, medical evidence incompatible with the alleged mechanism, seizure documents contradicting witness statements, official records disproving a pleaded date or location, or forensic material negating the prosecution theory.

4. Allegations Are Omnibus or Vague

General allegations such as “all the accused conspired” or “all family members harassed the complainant” are not substitutes for material establishing the necessary role and ingredients against each accused.

The discharge application should create an accused-specific evidence chart identifying which prosecution document allegedly supports each ingredient.

5. Predominantly Civil Dispute Given a Criminal Colour

The mere existence of a civil transaction does not prevent criminal prosecution. Equally, a contractual, commercial or property disagreement does not become a criminal offence merely because one party later describes it as cheating or breach of trust.

The critical question is whether the prosecution material establishes the criminal ingredients, including the required state of mind at the relevant time.

6. Legal Bar to Prosecution

A discharge argument may also arise from a clear legal bar such as absence of legally required sanction, jurisdictional prohibition, statutory immunity, limitation, absence of a legally required complaint, want of competence of the complainant or non-compliance with a mandatory statutory precondition.

7. Circumstantial Case Does Not Connect the Accused

Where the prosecution case is entirely circumstantial, there must still be material capable of connecting the accused to the alleged offence. Mere association, acquaintance, family relationship or professional connection cannot automatically substitute for incriminating material.

8. Conspiracy Alleged Without Supporting Material

Direct evidence of conspiracy may be rare, but the prosecution must still identify material from which an agreement or concerted criminal design can reasonably be inferred.

The defence should ask: What is the alleged agreement? Between whom? When is it said to have arisen? What conduct manifests it? What communication supports it? What circumstances link this accused to it?

Can the Accused Produce Defence Documents at the Discharge Stage?

This requires caution.

In State of Orissa v. Debendra Nath Padhi, the Supreme Court held, in the context of Sections 227/228 CrPC, that the accused does not have a general right at the charge stage to introduce defence material and insist upon its evaluation as if defence evidence were being recorded.

A discharge application should therefore generally be built first from the FIR, chargesheet, witness statements, documents, forensic material and electronic material relied upon by the prosecution.

Independent defence evidence ordinarily belongs to trial or another legally available remedy.

What About an Unimpeachable Defence Document?

There may be cases where the accused possesses material of exceptional and incontrovertible character that completely demolishes the prosecution.

The procedural question then becomes important. Instead of assuming that such material must be considered within the statutory discharge application, counsel should examine whether the appropriate remedy lies before the High Court, depending upon the case and the nature of the material.

This distinction prevents a discharge application from being rejected simply because it is founded on evidence the trial court is not legally entitled to evaluate at the charge stage.

Can the Court Assess Witness Credibility at Discharge Stage?

Ordinarily, not in the same manner as after cross-examination at trial.

The court should not decide whether a witness is ultimately truthful merely because the defence believes that witness can later be contradicted. But there is a difference between a witness whose credibility may later be challenged and a prosecution record that does not contain material satisfying an essential ingredient at all.

The latter can constitute a genuine discharge issue.

Can Contradictions Lead to Discharge?

Minor inconsistencies ordinarily belong to trial.

Contradictions may become relevant at discharge where they go to the foundation of the prosecution case and arise from the prosecution’s own material. Examples may include irreconcilable versions regarding identity, place of occurrence, essential chronology, alleged entrustment, foundational transaction, presence of the accused or the act constituting the offence.

The application should explain why the contradiction is legally destructive, not merely rhetorically useful.

What Should a Discharge Application Contain?

1. Jurisdiction and Applicable BNSS Provision

Identify whether the application falls under Section 250, 262 or 268.

2. Procedural Chronology

Record the FIR or complaint date, arrest if any, police report or complaint proceedings, cognizance, supply of documents, commitment, first hearing on charge and discharge filing date.

3. Exact Offences Alleged

List each BNS or special-statute provision.

4. Ingredients of Each Offence

Break each offence into its constituent legal requirements.

5. Prosecution Material Relied Upon

Identify each statement, document and expert or electronic record relied upon by the prosecution.

6. Ingredient-Wise Failure

Explain precisely what the prosecution record fails to establish.

7. Accused-Specific Role

Separate the applicant from the allegations against co-accused.

8. Governing Judgments

Apply the legal test rather than merely reproducing long case-law quotations.

9. Prayer

Seek discharge from the specified offences and consequential orders.

Documents That Should Be Reviewed Before Filing for Discharge

FIR;
complaint;
police report or chargesheet;
supplementary chargesheet;
witness statements;
Magistrate-recorded statements;
medical evidence;
FSL reports;
electronic records;
CCTV;
CDR or location material;
seizure memos;
arrest documents;
site plans;
expert reports;
bank records;
ownership records;
contractual documents;
sanction orders;
Section 230 supply record;
committal order; and
applicable special-statute material.

A Useful Ingredient–Evidence Matrix

Ingredient prosecution must establish	Prosecution document relied upon	What document actually proves	Gap
Ingredient 1	Witness A	Limited fact	Required element missing
Ingredient 2	Document X	Different transaction	No nexus to accused
Required intention	No direct document	Inference alleged	Foundational facts absent
Role of applicant	General allegation	No accused-specific act	Omnibus allegation

This kind of matrix often produces a much stronger discharge argument than a long narrative that never identifies the missing statutory element.

Discharge in Cheating Cases

In cheating prosecutions, the timing of the alleged dishonest intention is frequently decisive. A later contractual default does not by itself establish that dishonest intention existed when the representation or transaction began.

The defence should compare the original representation, payment or transaction, contractual obligations, subsequent conduct, contemporaneous communications and material relied upon to infer initial dishonest intention.

For the substantive offence framework, see Section 318 BNS: Cheating Law in India.

Discharge in Matrimonial Criminal Cases

Where multiple family members are arrayed as accused, discharge may turn upon whether the chargesheet contains specific conduct, specific dates, specific demands, specific acts of cruelty and supporting material against each individual accused.

General allegations against an entire family should be scrutinised accused by accused. For the substantive matrimonial-criminal framework, see BNS Sections 85 & 86: Cruelty by Husband or Relatives.

Discharge in Company and Director Prosecutions

A director, officer or employee should not automatically face trial merely because of designation. The prosecution must satisfy the statutory basis, if any, for personal criminal liability.

Depending upon the offence, the defence should examine whether vicarious liability is statutorily recognised, whether the company itself must be arraigned, the accused’s role at the relevant time, actual participation and specific allegations.

Designation alone is not a substitute for the ingredients required by the relevant penal statute.

Is Discharge the Same as Quashing of FIR or Chargesheet?

No. They are distinct remedies.

Discharge

The trial court evaluates the prosecution record within the statutory framework of Sections 250, 262 or 268 BNSS.

Quashing

A High Court may exercise its statutory, inherent or constitutional jurisdiction in appropriate cases to prevent abuse of process or secure the ends of justice.

For related remedies, see FIR Quashing in India and FIR Quashing After Settlement.

Should an Accused File Discharge or FIR Quashing?

It depends on the stage and nature of the defect.

A discharge application may be particularly appropriate where the chargesheet is already before the trial court, the prosecution record itself does not make out the offence, the issue can be decided within the statutory charge framework or the accused seeks trial-court scrutiny before charge.

A High Court challenge may be more appropriate where proceedings are fundamentally without jurisdiction, an unimpeachable external document is central, prosecution itself constitutes abuse of process or another recognised quashing principle applies.

Forum and remedy should be chosen from the defect, not the other way around.

What Happens If Discharge Is Rejected?

If the court finds the threshold for proceeding is satisfied, it may frame the appropriate charge. Rejection of discharge does not mean the accused has been found guilty.

The prosecution still carries the burden of proving the offence at trial. The accused retains rights including cross-examination, production of defence evidence, objections to admissibility, examination of electronic evidence, legal submissions and appropriate appellate or revisional remedies where maintainable.

For the broader evidence framework, see Bharatiya Sakshya Adhiniyam 2023: Evidence Law and Electronic Records.

Important Supreme Court Principles on Discharge

Union of India v. Prafulla Kumar Samal

The Supreme Court established that the judge is not a mere post office and may sift the material for the limited purpose of determining whether sufficient ground exists to proceed. At the same time, the court should not conduct the trial itself at the discharge stage.

State of Bihar v. Ramesh Singh

The Supreme Court distinguished the threshold applicable at the stage of charge from proof required for conviction. Where the material raises the degree of suspicion sufficient to proceed, charge may be framed even though guilt remains to be proved at trial.

State of Orissa v. Debendra Nath Padhi

The Supreme Court clarified that an accused does not ordinarily have a right to introduce defence evidence at the framing-of-charge stage and compel the trial court to adjudicate it as part of the discharge exercise.

P. Vijayan v. State of Kerala

The Court reiterated that where two views are possible and the material gives rise only to suspicion rather than the degree of suspicion required to proceed, discharge may be justified. The court must exercise judicial mind without undertaking the full evidentiary evaluation reserved for trial.

Frequently Asked Questions

What is discharge under BNSS?

Discharge is termination of the criminal proceeding against an accused before full trial where the statutory threshold for proceeding or framing charge is not satisfied.

What is Section 250 BNSS?

Section 250 governs discharge in cases before a Court of Session. The accused may prefer the discharge application within 60 days from commitment under Section 232.

What is Section 262 BNSS?

Section 262 governs discharge in warrant cases before a Magistrate instituted on a police report. The application may be preferred within 60 days from supply of documents under Section 230.

What is Section 268 BNSS?

Section 268 governs discharge in warrant cases instituted otherwise than on a police report. It permits discharge after pre-charge prosecution evidence where no case is made out which, if unrebutted, would warrant conviction, and permits earlier discharge where the charge is groundless.

Is discharge the same as acquittal?

No. Discharge ordinarily occurs before full trial, whereas acquittal generally follows the applicable trial process or evidentiary stage.

Can the court examine evidence while deciding discharge?

It may sift and examine the prosecution material for the limited purpose of determining whether the statutory threshold for proceeding exists, but it should not conduct a mini trial.

Can the accused file private defence documents with a discharge application?

As a general rule, Supreme Court authority under the corresponding CrPC provisions does not give the accused a general right to introduce defence evidence at the charge stage as though the defence case were being tried.

Can contradictions in witness statements justify discharge?

Minor contradictions ordinarily belong to trial. A contradiction may become significant where the prosecution’s own material fails to establish a foundational ingredient or is internally destructive of the alleged offence.

Can one accused be discharged while others face trial?

Yes. The court must examine the alleged role and material against each accused individually.

Does rejection of discharge mean the accused is guilty?

No. It merely means the court considers the threshold for proceeding to trial to have been crossed.

Is there now a time limit for filing discharge under BNSS?

Yes. Section 250 provides 60 days from commitment in Sessions cases, while Section 262 provides 60 days from supply of documents under Section 230 in police-report warrant cases.

Authoritative Legal Sources

Conclusion

Discharge under the BNSS should not be approached as an abbreviated final trial. The exercise is narrower and more precise.

The defence should identify the applicable discharge provision, identify every legal ingredient of the alleged offence, map the prosecution’s own material against those ingredients, separate the applicant’s alleged role from that of co-accused, identify what is genuinely missing rather than what may merely be disputed at trial, and apply the correct Supreme Court threshold.

The BNSS has made procedural discipline even more important by expressly prescribing 60-day periods for preferring discharge applications under Sections 250 and 262. Defence analysis should therefore begin as soon as the case is committed or the prosecution papers are supplied.

Disclaimer

This article is published for general legal awareness and educational purposes only. It is not an advertisement, solicitation, invitation or inducement for professional engagement and does not constitute legal advice for a particular criminal proceeding. The availability and merits of discharge depend upon the applicable offence, prosecution record, procedural stage and facts of the individual case.

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